Jury awards Feibush $34,000 in dispute with Johnson

by By Tricia L. Nadolny, Staff Writer, Posted: May 11, 2016

Ori Feibush leaves federal court in Philadelphia after the ruling in his favor.

YONG KIM / Staff Photographer

The long-standing custom of giving Philadelphia City Council members complete control over land use in their districts, known as councilmanic prerogative, took a beating in federal court Wednesday when a jury said it was used by a Council member to punish a political foe.

Developer Ori Feibush had accused Councilman Kenyatta Johnson of blocking his attempts to buy two city-owned lots after he announced plans to run against Johnson in the 2015 Democratic primary. The jury, which deliberated for a little more than two hours, sided with Feibush and awarded him $34,000 in damages.

"Look, the good ol' boys club of Philadelphia and of how things have operated for many years cannot continue. Our city is broke," Feibush said after the verdict, mirroring arguments he made on the campaign trail. "We're struggling in so many different communities. Our schools are deplorable. And a lot of that lays at the feet of certain Council members."

Johnson, in a statement, said that he would appeal the verdict and that the jury's decision "may compromise a city legislature's ability to properly represent the people who elected them."

"This verdict is not about me," Johnson said. "It will have a chilling effect on the entire Council's ability to take controversial or unpopular positions regarding land disposition in favor of people who are being shoved aside for investor profits."

Johnson beat Feibush one year ago next week in what was arguably the most compelling Council race of the primary. It pitted a developer seen as the face of gentrification in the fast-changing neighborhood of Point Breeze against a politician born in the community who has pressed to maintain affordable housing there.

It's unclear what impact the verdict will have on councilmanic prerogative, but David Thornburgh, CEO of the government watchdog Committee of Seventy, called it "hugely significant."

"I've never known anyone to challenge it in court," he said. "We've gone along all this time thinking, that's just the way we do things. Now there's a jury that said, 'No, this damaged this developer's ability to do business.' "

The custom gives Council members deference within their districts on how city-owned properties are sold and how countless development projects are approved.

According to a 2015 report by the Pew Charitable Trusts, in recent years Council has never voted on land-use issues against the wishes of the member whose district the property is in. Of 730 of those votes, all but four passed unanimously, the report said.

Feibush said Johnson used councilmanic prerogative in late 2013 and early 2014 when Feibush sought to buy two properties on the 1300 block of South Cleveland Street. Feibush was the highest bidder at auction, but Johnson never introduced legislation to allow him to buy the land, effectively killing the deal.

Johnson has said he wanted the lots set aside for an affordable housing strategy. In closing arguments Wednesday, John Coyle, Johnson's attorney, said the councilman did not let Feibush purchase those lots but did introduce legislation to sell Feibush six others - even after Feibush said in a May 2013 Philadelphia Magazine article that he planned to run against Johnson.

"If you want to suppress someone's free speech rights, you do that as soon as they start campaigning against you," Coyle said. "You do that when they first show the signs of discontent."

Feibush's lawyer, Wally Zimolong, said those six properties were sold before Feibush filed papers for his political action committee and started campaigning in earnest. He said that after Feibush took that step, Johnson cut off his ability to purchase city land.

As proof that Johnson treated Feibush differently from other developers, Zimolong in closing arguments pointed to a property adjacent to the two Feibush tried to buy that has since been sold by the city and developed - not as affordable housing.

"How does he approve that and not approve my client's" bid, Zimolong asked.

It was because "my client was his opponent. My client called him a 'poverty pimp,' " Zimolong answered, referencing comments Feibush made about Johnson in the Philadelphia Magazine article in which he said he would run for office. "My client called him a 'terrible human being.' "

Johnson, in his statement, said his intention has been to protect longtime and low-income residents in Point Breeze, which is developing at "breakneck speed, driven by the attraction of windfall profits being made on every block."

Feibush had sought $275,000 in damages. His attorney said the lower amount the jury settled on was likely meant to cover the costs Feibush incurred after he was declared the highest bidder on the Cleveland Street properties, including attorney and architects fees, but not what he could have made had he developed the lots and sold them.